Petitioner Rebecca L., Guardian of the Property of her father John M. (I.P. and/or John M.), seeks to annul the marriage between John M. and Helen E., alleging that John M. lacked the capacity to enter the marriage. In addition to the testimony of Rebecca L., Charles M. Barbuti, Esq., Guardian of the Person of John M. (Mr. Barbuti), and Helen E. taken at the annulment hearing on May 18, 2023 and continued on June 2, 2023 (Annulment Hearing), the Court having considered the following in reaching the instant Decision and Order: CPLR 2219(a) Papers Considered: 1. Verified Petition dated May 14, 2022, for the appointment of a Guardian for John M., Filed May 19, 2022, New York County Clerk 2. Order to Show Cause issued May 26, 2022, for the appointment of a Guardian for John M. 3. Order issued May 26, 2022, appointing Charles Barbuti, Esq., as Temporary Guardian to John M. 4. Court Evaluator’s Report dated July 15, 2022 5. Decision and Order dated July 22, 2022, Filed August 2, 2022, New York County Clerk 6. Transcript of the July 19, 2022, Guardianship hearing (NYSCEF Doc. No. 22) 7. Order and Judgment Appointing Guardian of the Person and Property dated September 9, 2022 (NYSCEF Doc. No. 3) 8. Order to Show Cause — Action to Annul A Marriage (NYSCEF Doc. No. 28) 9. Verified Petition dated January 26, 2023, and Exhibits, including State of New Jersey Certificate of Marriage & NYS, City of New York, City Clerk, Marriage License (NYSCEF Doc. No. 19) 10. Sheila T. Murphy, Esq., Affidavit in Support of Order to Show Cause, dated January 31, 2023 (NYSCEF Doc. No. 20) 11. Affidavit of Personal Service of OSC and Petition upon Helen E. dated April 5, 2023, (NYSCEF Doc. No. 30) 12. Leo L. Rosales, Esq., Affirmation in Opposition to the OSC To Annul A Marriage, dated May 1, 2023 (NYSCEF Doc. No. 36) 13. Helen E. Affidavit in Opposition to the OSC To Annul A Marriage, dated May 1, 2023 (NYSCEF Doc. No. 36) 14. Sheila T. Murphy, Esq., Reply Affirmation/Order to Show Cause, dated May 11, 2023 (NYSCEF Doc. No. 40) 15. Todd A. Fishlin, Esq., Reply Affirmation, dated May 11, 2013 (NYSCEF Doc. No. 41) 16. Certified Copy of Marriage License Not to be Processed for John M. and Helen E., Petitioner’s Ex. 1 17. Marriage License Appointment Confirmation email from the City Clerk’s Office sent to John M. at [email protected] on November 29, 2021, Petitioner’s Ex. 4 18. Text message conversations between Helen E. and John M.’s son David M., on December 15, 2021, and April 3-5, 2022, Helen E. Ex. 1 19. Three photographs of John M. and Helen E. together, Helen E. Ex. 2 20. Affirmation of Immigration Attorney Felix Vinluan, Esq., dated May 18, 2023, in connection with the following 3 Videos: a. Video 1 of John M. at Felix Vinluan, Esq., office in connection to the Helen E.’s immigration application, Helen E. Ex. 3 b. Video 2 of John M. at Felix Vinluan, Esq., office in connection to the Helen E.’s immigration application, Helen E. Ex. 4 c. Video 3 of John M. at Felix Vinluan, Esq., office in connection to the Helen E.’s immigration application, Helen E. Ex. 5 21. Transcript of the May 12, 2023 Annulment Hearing DECISION & ORDER Background: This Court is familiar with the background leading up to the instant annulment action due to having issued an Order to Show Cause on May 26, 2022, appointing Mr. Barbuti as personal needs guardian and Petitioner, Rebecca L., as guardian over the property of John M., and having conducted the underlying Mental Hygiene Law (MHL) Art. 81.11 hearing on July 19, 2022, which lead to the finding that John M. was an incapacitated person. The Petitioner, Rebecca L., the daughter of John M., commenced the guardianship proceeding on May 19, 2022, alleging in her Verified Petition that John M. suffered from cognitive impairment and was unable to manage his activities of daily living. John M. has five children who reside in different states but maintain phone contact and in-person visits with him. Rebecca L. resides in Virginia. Prior to the July 19, 2022, Guardianship Hearing, this Court appointed Mr. Barbuti as Temporary Guardian, Katherine Huang, Esq. as Court Evaluator (Ms. Huang), and Todd Fishlin, Esq. as the attorney for John M. (Mr. Fishlin). At the Guardianship Hearing, John M. was present with his counsel Mr. Fishlin. In addition, John M.’s children Rebecca L., Sarah B., Charlie M., David M., Emmy V. and brother Jim M.; Henry D., friend of John M.; the Temporary Guardian, and the Court Evaluator were also present. Rebecca L., Jim M., Ms. Huang, Mr. Barbuti, and Helen E. testified. Although John M. did not testify at the hearing, the Court was able to observe him throughout. The Petitioner testified that she noticed memory issues and received calls from family and friends beginning in 2019 alleging the same. In 2020, John M. moved to a senior living community, Evergreen Woods, in North Branford, Connecticut. He was diagnosed with mild cognitive impairment at the Adler Center in February 2021. A series of events, that included wandering away from Evergreen Woods, falling, locking himself out of his residence, getting lost while taking walks, and singing the French national anthem loudly at 9:00 p.m. at the door of a fellow resident led the facility to require a full-time aide for John M. to continue to reside at Evergreen Woods. Sometime in September 2021, John M. moved back to his apartment in New York City. Several times, John M. left the stove on in the apartment. On one occasion the apartment filled with smoke and the fire department was called. With respect to his financial matters, John M. had stopped paying his Co-op maintenance, Con Edison, the internet/cable provider, and did not file his 2021 tax returns. In addition, he fell victim to a computer scam costing him $18,000.00. Subsequent to John M. returning to his New York residence, the Petitioner and her family became aware of Helen E. whom John M. described as a “lady friend”. She was the home health aide from Evergreen Woods assigned to John M., who began a romantic relationship with John M., and later moved into his residence. The family alleged, inter alia, that Helen E. began to isolate John M. from his family by not allowing John M. to answer the phone when they called, and telling John M. that his children were after his money. In addition, certain funds were unaccounted for in John M.’s bank account. The family also became aware that Helen E. had made several attempts to obtain a marriage license. Notwithstanding the importance of the hearing, Helen E. appeared very late, without providing a reason, and right before this Court issued its on-the-record ruling. The Court asked Helen E. if she wished to address the Court regarding the guardianship proceeding, the allegations or any other matter of concern. Helen E. was sworn in and testified at length about John M.’s generosity but did not raise any concerns or ask any questions regarding the proceeding or any other matters. She stated: So I fell in love with John…because we have the same qualities. And I marry him because we love each other faithfully and honestly. But they invalid [sic] our wedding. I don’t know any reason. And then I marry him, because I went [sic] to see my parents. My dad is dying now, so I want to go to my country. Based on her representation at the Guardianship Hearing, it was not clear to this Court that she and John M. were married, and she did not mention anything about the marriage in New Jersey. Thereafter, this Court made a finding and ruling on the record that John M. was an incapacitated person as defined by MHL §81.01(b), based upon clear and convincing evidence that he was likely to suffer harm because he was unable to provide for his personal and property management needs and could not adequately understand and appreciate the nature and consequences of such inability. This Court issued the Order and Judgment Appointing a Guardian of the Person and Guardian of the Property with Short Form Commission on September 9, 2022. Thereafter, once Mr. Barbuti discovered a New Jersey marriage certificate, the instant proceeding to annul the marriage was filed. Hearing and Discussion: This Court began the annulment hearing on May 18, 2023 (Annulment Hearing), continued and concluded the hearing on June 2, 2023. The Verified Petition of Rebecca L. states “Ms. Helen E. a home health aide, has attempted on several occasions to marry my father. It now appears that she succeeded in marrying him on or about June 23, 2022.” Indeed, as demonstrated at the Annulment Hearing, as early as December 2021, Helen E. had an appointment with John M. at the Manhattan City Clerk’s Office to obtain a marriage license. Petitioner’s Ex. 1, May 3, 2022, Marriage License marked “Do Not Issue — Not To Be Processed”, reveals that when Helen E. and John M. went to the appointment, John M. did not have copies of his divorce decrees, so they were unable to obtain a license. Petitioner alleges that Helen E. took John M. to Boston, Massachusetts to obtain a copy of a divorce decree and made another appointment in New York City for a marriage license. That second application was denied as the clerk questioned John M. and deemed him not to be mentally competent. (Petitioner’s Ex. 1.) A third application was made with the assistance of a third party and a license to marry was issued. (Id.) Petitioner testified at the Guardianship Hearing and alleged in the underlying petition that a marriage ceremony was held within John M.’s apartment on May 4, 2022. (Id.). Petitioner testified that she knew nothing about her father’s wedding to Helen E. until after the fact. The issuance of a marriage certificate following this third marriage attempt was denied: DO NOT ISSUE NOT TO BE PROCESSED Couple surreptitiously obtained marriage license after two denials. Couple was able to unlawfully obtain marriage license with the assistance of third party. Groom was married two previous times and failed to produce a copy of one of the divorce decree. During the Interview groom was questioned and he was deemed not mentally competent. Groom’s daughter confirmed his diagnosis of Alzheimer’s. Consequently marriage record was not processed per general counsel. Petitioner’s Ex. 1, Marriage License Issued 05/03/2022. Thereafter Helen M. obtained a marriage license in Jersey City, New Jersey — was married there to John M. on June 23, 2022; which license was filed on June 29, 2022; and resulted in a Certificate of Marriage being issued by the State of New Jersey on July 18, 2022. Exhibit B to Verified Petition to Annul A Marriage. In the Affirmation of Felix Vinluan, Esq. (Mr. Vinluan), he stated, “Sometime second week of July 2022, a former client of mine […] dropped by my Woodside office and introduced a woman named Helen [E.] who was looking for a lawyer to assist her in preparing her immigration sponsorship papers as she allegedly had just married a U.S. citizen and that this U.S. citizen-spouse was willing to sponsor her.” On July 30, 2022, eleven days after this Court, with Helen E. present, determined that John M. was incapacitated and needed a guardian of his person and property, Helen E. engaged Mr. Vinluan to file the U.S. citizenship application and proceeded to take John M. to see him. Mr. Vinluan testified at the Annulment Hearing that Helen E. and John M. came into his office on July 30, 2022. Helen E. retained him in connection to her application to file for U.S. citizenship and John M. was to be her sponsor. MHL §81.29 [d] states, “[i]f the court determines that the person is incapacitated and appoints a guardian, the court may modify, amend or revoke…any contract…made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed…contract…was made while the person was incapacitated”. MHL §81.29[d] (emphasis added). Further, “[m]arriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.” DRL §10. Helen E. argues that John M. was fully capable of entering into a marriage at the time of his nuptials and was not incapacitated. Additionally, she argues that there is no medical evidence to support a finding of incapacity. She also alleges that the Petition is motivated by animosity towards her by the family members. She claims that at the time of her New Jersey marriage on June 23, 2022, she did not know that the Court had appointed a Temporary Guardian for John M., nor did she know the nature of the guardianship proceeding. John M. lacked the power to enter into the marriage on June 23, 2022, because the power to enter into contracts was specifically given to the Temporary Guardian of the Person and Property on May 26, 2022. (MHL §81.23(a)[1]; see also Matter of Loew, 211 A.D.3d 77 (1st Dept. 2022), “[M]arriage is a civil contract between two wedded individuals, and among the powers of an article 81 guardian is the power to manage the IP’s property, including contracts.”) Helen E. testified at the Annulment Hearing that she did not know about the underlying Guardianship Hearing. This Court does not credit that testimony. The underlying Guardianship Hearing was scheduled for July 19, 2022, and Helen E. met the Temporary Guardian on June 8, 2022, when he came to the residence to meet John M. and later found Helen E. hiding in the closet. Mr. Barbuti testified that prior to the hearing, he provided Helen E. with the number to call into the hearing, which she eventually did. Moreover, she testified that she also met Mr. Fishlin, Esq. at the apartment one time and met the Court Evaluator, Ms. Huang prior to the Guardianship Hearing. When asked on cross-examination if she ever wondered why a court evaluator, an attorney, and a temporary guardian all came to the apartment to visit with John M, (all of whom she met before the July 19, 2022, hearing), she replied no, she never wondered why. Notwithstanding, Helen E. appeared and testified at the July 19, 2022, Guardianship Hearing and was present when this Court issued its finding. At the Annulment Hearing, this Court was further persuaded as to John M.’s incapacity at the time of the marriage based on Helen E.’s Exhibits 3 and 4: videos purporting to show John M. and Helen E. at Mr. Vinluan’s office. Helen E. called Mr. Vinluan as a witness and he testified that he took three short video recordings of John M. on July 30, 2022, to assure himself that John M. was not being coerced. As demonstrated in Helen E.’s Ex. 3, when asked by Mr. Vinluan about his marriage to her, John M. could not advise of the date of the wedding, where they were married, or of Helen E.’s last name. Indeed, John M. had to be told the correct answers for these questions. It was apparent to this Court that he was confused and struggling to recall the answers. It should be noted that this video was made only five weeks after the June 23, 2022, New Jersey marriage. In Helen E.’s Ex. 4, John M. is shown signing the petition to sponsor Helen E.’s citizenship. Mr. Vinluan asks him if he were sponsoring Helen E. so that she can have legal status in the United States and whether he was being forced to do it. John M. appeared confused and responded, “say what you just said.” It was clear to the Court that John M., a Yale Law School graduate and former practicing attorney, was struggling to understand the questions posed to him by Mr. Vinluan. Helen E. testified that John M. left Evergreen Woods, where he resided and where she was employed, and moved back to New York City in September 2021. She claims he surprised her in December 2021, when he called to invite her to visit him at his residence in Manhattan. She stated that after that initial visit, the relationship developed “little by little.” She claims that John M. would call her to profess his love, and that he knew about and offered to help her with her immigration issues. She testified that she never noticed that John M. suffered any cognitive impairment. During cross-examination, Petitioner’s counsel reminded Helen E, that she was hired as an aide to assist John M. at Evergreen Woods after a series of events led the staff to determine that John M. needed to receive 24-hour supervision to maintain his residence there. When asked what information was given to her by the agency regarding her duties, she testified that she was told to walk with him, wash his clothes and clean his room. She also testified that John M. had no physical limitations that she had to assist him with. When asked why she was there to assist him, she answered, for companionship. On cross-examination by Mr. Fishlin, he asked why John M. was at Evergreen Woods and why he needed an aide 24/7, if he was physically and mentally fit. Helen E. answered that she did not know, that his children wanted him there, and he was calling a friend in New York for help to move back. Mr. Fishlin asked her that if John M. was able to leave on his own, why did he need help. She answered that she did not know, and his children were lazy. Helen E. testified that John M. wanted to assist her with her immigration issues and that she had been denied a marriage license only once in New York County, and that she didn’t ask the reason for the denial. When asked by Mr. Fishlin whether she found it strange when they went to obtain a license in New York County that John M. could not remember how many times he was married, Helen E. answered no. Mr. Fishlin asked Helen E. why a confirmation email from City Clerk’s Office was sent on November 29, 2021, to John M. confirming an appointment for a marriage license on December 21, 2021, when she had previously testified (as well as stated in her Affidavit) that their relationship didn’t begin until December 2021. She testified she did not know anything about the confirmation email. This Court does not find any of Helen E.’s testimony at all credible. Her answers were intentionally evasive, non-responsive, and contradictory. The record is replete with evidence indicating that John M. suffered from cognitive impairment and that Helen E. acted to benefit herself despite John M.’s impairment and to his detriment. The record also demonstrates that Helen E. unduly influenced him into consenting to this marriage. It would be unconscionable to permit Helen E. to benefit from this marriage despite having knowledge of John M.’s cognitive impairment, having knowledge of the underlying guardianship proceeding and the appointment of a Temporary Guardian, and after taking John M. to different States on her quest to obtain a marriage license and marriage certificate for the purpose of filing a U.S. Citizenship application. Indeed, the record contains ample evidence that John M. was not capable of consenting to any of Helen E.’s actions by reason of his want of understanding. Conclusion: Contrary to Helen E.’s contentions, the Petitioner proved by clear and convincing evidence that John M. was unable to enter into a marriage with Helen E. and was indeed incapacitated when he married Helen M. “Where an article 81 guardian has been appointed for an IP and the individual is found to have been incapable of understanding the nature, effect, and consequences of the marriage, annulment of the marriage is an available remedy for the guardian to pursue.” Matter of Edgar V.L., 214 A.D.3d 501 (1st Dept 2023) Pursuant to Domestic Relations Law 236 §[B][5], if the annulment of a marriage is granted, the court “shall determine the respective rights of the parties in their separate or marital property and shall provide for the disposition thereof in the final judgment.” However, “[a] marriage revoked under Mental Hygiene Law §81.29(d), unlike an annulled marriage is void ab initio.” Matter of Kaminester, 26 Misc 3d 227 at 235 (Sur Ct, New York County 2009) (citations omitted). See also, id. at 236, citing Matter of Kaminester v. Foldes, 51 A.D.3d 528 (1 Dept 2008), upholding lower court order which voided a marriage ab initio. Further, because the marriage is void ab initio, pursuant to Domestic Relations Law 236 [B][5], and in consideration of the necessity to protect John M. from harm, Helen E. is not entitled to a spousal share of John M.’s estate and can claim no legal interest as a spouse. (See Matter of Kaminester, 26 Misc 3d 227 at 237). Accordingly, it is ORDERED, that the marriage of John M. and Helen E. be, and it is declared, null and void and of no effect ab initio, and that each of the parties is restored to status quo ante; and it is further ORDERED, that Helen E. shall not utilize the surname of John M. as a marriage name or for any other purpose; and it is further ORDERED, that this ruling is without prejudice to any actions brought on behalf of John M. for the recovery from Helen E. of monies misappropriated from his accounts through financial exploitation, fraud, overreaching or any other form of impropriety by Helen E.; and it is further ORDERED, that Todd Fishlin Esq., as counsel for John M., is directed to serve a copy of this Decision and Order with Notice of Entry upon the parties herein within 20 days of entry hereof, and to file an Affirmation of Service with the County Clerk. Dated: June 22, 2023
